Known as the clergy–penitent privilege, clergy privilege, confessional privilege, priest–penitent privilege, clergyman-communicant privilege, and ecclesiastical privilege; it is an application of the principle of privileged communication that protects the contents of communications between a member of the clergy of any religious faith (a “clergy” is a minister, priest, rabbi, or other similar functionary of a religious organization, or an individual reasonably believed to be so by the person consulting him) and a penitent, who shares information in confidence. It stems from the principle of confessional privilege. It is a distinct concept from that of confidentiality (see non-disclosure agreement).

The protection of the clergy-penitent privilege relationships rests on one of the more basic privileges as strong or stronger than the similar clauses to confidentiality between lawyer and client.[1]

According to former U.S. Supreme Court Chief Justice, Warren Burger, “The clergy privilege is rooted in the imperative need for confidence and trust. The... privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive consolations and guidance in return.”[4]

A pastor has a duty to hold in confidence any information obtained during a counseling session. A pastor who violates this trust might be on the losing end of a suit for an invasion of privacy or defamation.[5]

The First Amendment is largely cited as the jurisprudential basis. The earliest and most influential case acknowledging the priest–penitent privilege was People v. Phillips (1813), where the Court of General Sessions of the City of New York refused to compel a priest to testify. The Court opined:

It is essential to the free exercise of a religion, that its ordinances should be administered—that its ceremonies as well as its essentials should be protected. Secrecy is of the essence of penance. The sinner will not confess, nor will the priest receive his confession, if the veil of secrecy is removed: To decide that the minister shall promulgate what he receives in confession, is to declare that there shall be no penance...

A few years after Phillips was decided, People v. Smith distinguished the case on the grounds that the defendant had approached the minister as a "friend or adviser," not in his capacity as a professional or spiritual advisor. As with most privileges, a debate still exists about the circumstances under which the priest-penitent privilege applies. The capacity in which the clergyman is acting at the time of the communication is relevant in many jurisdictions.

In U.S. practice, the confidentiality privilege has been extended to non-Catholic clergy and non-Sacramental counseling, with explicit clergy exemptions put into most state laws over the past several decades.[6] Child Welfare Information Gateway states that the privilege of maintaining this confidentiality under State law must be provided by statute. Most States do provide the privilege typically in rules of evidence or civil procedure.[6]

(1) A "clergyman" is a minister, priest, rabbi, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him. (2) A communication is "confidential" if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication. (b) General rule of privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication made by the person to a clergyman in his professional character as a spiritual adviser. (c) Who may claim the privilege. The privilege may be claimed by the person, by his guardian or conservator, or by his personal representative if he is deceased. The clergyman may claim the privilege on behalf of the person. His authority so to do is presumed in the absence of evidence to the contrary.

According to New York law, confessions and confidences made to a clergyman or other minister are privileged and cannot be used as evidence. This privilege is not limited to communications with a particular kind of priest or congregant, and it is not confined to statements made ‘under the cloak of confession.’ What matters is that the conversations were of a spiritual nature, were confidential enough to indicate that the penitent intended that they be kept secret, and that the penitent did not waive the privilege subsequently.[7] New York law (NY CPLR 4505) provides that: unless the person confessing or confiding waives the privilege, a clergyman, or other minister of any religion or duly accredited Christian Science practitioner, shall not be allowed to disclose a confession or confidence made to him in his professional character as a spiritual advisor.[7]

A 1999 Oregon bill (52-0) gives clergy members the same type of immunity long granted to spouses, whose conversations are privileged…[8] Oregon Statute ORS 40.260 (Clergy-Penitent Privilege) states confidential communication made privately and not intended for further disclosure may not be examined unless consent to the disclosure of the confidential communication is given by the person who made the communication.[9] Oregon’s reporting law 419B.010(1), explicitly exempts pastors from any duty to report such privileged communications.[10]

In California, absent a waiver [Ca Evid & 912], both clergy and penitent – whether or not parties to the action- have a privilege to refuse to disclose a “penitential” communication.[Ca Evid & 1033, 1034].[11]

In twenty-five states, the clergyman-communicant statutory privilege does not clearly indicate who holds the privilege. In seventeen states, the penitent's right to hold the privilege is clearly stated. In only six states, both a penitent and a member of the clergy are expressly allowed by the statute to hold the privilege.

In Florida, pastors have an absolute right to keep counseling details confidential after a 3-judge panel of the Second District Court of Appeals ruled unanimously that a Florida minister does not have to divulge details of a counseling session to law enforcement officials prosecuting a criminal case.[12] The state of Florida’s attempt to undermine pastoral counseling was soundly defeated because those who seek spiritual counseling must have the assurance that what they say in private will remain confidential.[12]

The Official Code of Georgia Annotated states: Every communication by any person professing religious faith seeking spiritual comfort, or seeking counsel to any Protestant minister of the Gospel, any priest of the Greek Orthodox, Catholic Faith, any Jewish Rabbi, or to any Christian or Jewish Minister, by whatever name called shall be deemed privileged. No such minister, priest, or rabbi shall disclose any communication made to him by any such person professing religious faith, seeking spiritual guidance, or seeking counseling, nor shall such minister, priest, or rabbi be competent or compellable to testify with reference to any communication in court. (O.C.G.A 24-9-22).[13]

Canadian law descends from British common law, and as such the status of priest–penitent privilege is not well defined in national jurisprudence. R. v. Gruenke[16] from 1991 is the leading Supreme Court of Canada case regarding this privilege. Religious communications are not presumptively (prima facie) privileged.

The court establishes that a test, proposed by John Henry Wigmore, might be employed to determine whether a specific communication is privileged or not. The "Wigmore Criteria" is seen as a general framework, not a "carved in stone" approach. The "Wigmore Criteria" are generally used to determine if privilege covers communications that do not fall under the classic privileged communications such as solicitor-client privilege or spousal privilege.[17]

To determine whether a communication is privileged, the "Wigmore Criteria" state that:

The communications must originate in a confidence that they will not be disclosed

This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties

The relation must be one which in the opinion of the community ought to be sedulously fostered.

The injury that would inure to the relation by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of litigation

The "Wigmore Criteria" are informed by the Canadian Charter of Rights and Freedoms guarantee of freedom of religion (protected under s.2(a)) and the interpretive s.27 ("This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.")[18]

As a result of s.27, the term "religious communications" is used in place of the more common "priest-penitent" term. Similarly, analysis should begin from a non-denominational approach.

Religious freedom strengthens the argument in favour of recognition of the privilege for religious communications. However, religious communications are only privileged in particular cases when the Wigmore criteria are satisfied. While a formal confession process is not necessary, it can help in determining whether there is an expectation of privacy when evaluating the communication using the "Wigmore Criteria"

In R. v. Gruenke, it was found that the communications were not privileged because there was no expectation of privilege between Ms. Gruenke and her pastor and her religious counsellor.

In October 1999, it was reported that the Canadian government had opposed a plan to recognize the value of priest–penitient privilege within the bounds of international law.[19]

Article 178 of Polish criminal code explicitly forbids calling a clergyman as a witness in order to disclose information he obtained during confession.[20] Article 261 of Polish civil code allows clergymen to abstain from testifying informations he obtained during confession.[21]

Jeremy Bentham, writing in the early years of the nineteenth century, devoted a whole chapter to serious, considered argument that Roman Catholic confession should be exempted from disclosure in judicial proceedings, even in Protestant countries, entitled: Exclusion of the Evidence of a Catholic Priest, respecting the confessions entrusted to him, proper.[23][24] Remarkably, Bentham was an opponent of professional privilege for the giving of legal advice. He noted:

Among the cases in which the exclusion of evidence presents itself as expedient, the case of Catholic confession possesses a special claim to notice. In a political state, in which this most extensively adopted modification of the Christian religion is established upon a footing either of equality or preference, the necessity of the exclusion demanded will probably appear too imperious to admit of dispute. In taking a view of the reasons which plead in favour of it, let us therefore suppose the scene to lie in a country in which the Catholic religion is barely tolerated: in which the wish would be to see the number of its votaries decline, but without being accompanied with any intention to aim at its suppression by coercive methods. Any reasons which plead in favour of the exclusion in this case will, a fortiori, serve to justify the maintenance of it, in a country in which this religion is predominant or established.

He refers the reasons in favour of the exclusion to two heads:

evidence (the aggregate mass of evidence) not lessened

"vexation", "preponderant vexation".

Under the first heading he says that the effect of non-exclusion would be the decrease in the practice of confession, he said:

The advantage gained by the coercion gained in the shape of assistance to justice, would be casual, and even rare: the mischief produced by it, constant and all-extensive. ... The advantages of a temporal nature, which, in the countries in which this religious practice is in use, flow from it at present, would in a great degree be lost: the loss of them would be as extensive as the good effects of the coercion in the character of an aid to justice. To form any comparative estimate of the bad and good effects flowing from this institution, belongs not, even in a point of view purely temporal, to the design of this work. The basis of the inquiry is that this institution is an essential feature of the Catholic religion, and that the Catholic religion is not to be suppressed by force. If in some shapes the revelation of testimony thus obtained would be of use to justice, there are others in which the disclosures thus made are actually of use to justice, under the assurance of their never reaching the ears of the judge. Repentance, and consequent abstinence from future misdeeds of the like nature; repentance, followed even by satisfaction in some shape or other, satisfaction more or less adequate for the past: such are the wellknown consequences of the institution: though in a proportion which, besides being everywhere unascertainable, will in every country and in every age be variable, according to the degree and quality of the influence exercised over the people by the religious sanction in that form, and the complexion of the moral part of their character in other respects.

The whole chapter is exclusively limited to the claim for protection for the Catholic practice of confession.[25]